Citation Nr: 0021226
Decision Date: 08/11/00 Archive Date: 08/18/00
DOCKET NO. 92-19 159 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in New York,
New York
THE ISSUE
Entitlement to an increased rating for residuals of a shell
fragment wound of the cervical region affecting Muscle group
XXII, currently rated as 30 percent disabling.
REPRESENTATION
Appellant represented by: Timothy L. Salvatore, Attorney
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. Connolly Jevtich, Counsel
INTRODUCTION
The veteran had active service from October 1952 to July
1954.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a rating decision of January 1991, by
the New York, New York Regional Office (RO). The veteran
appealed this determination to the Board. In October 1992,
the veteran testified at a personal hearing at the RO before
a member of the Board. In February 1993 and April 1995, the
Board remanded this case to the RO for further action. The
appellant was unrepresented in his appeal.
In October 1998, the Board determined that a 30 percent
rating was warranted for the veteran's cervical spine
disability. Thereafter, the veteran appealed the Board's
decision to the United States Court of Appeals for Veterans
Claims (known as the United States Court of Veterans Appeals
prior to March 1, 1999) (hereinafter, "the Court"). The
veteran was represented in his appeal to the Court by the
private attorney listed on the front page of this remand and
has remained represented by this private attorney.
The Court granted a Joint Motion for Remand and a Stay of
Further Proceedings and vacated the Board's October 1998
decision with respect to the issue on the front page of this
decision. The Court remanded the case to the Board, under
the authority of 38 U.S.C.A. § 7252(a) (West 1991), for
readjudication in compliance with the directives in the Joint
Motion for Remand.
REMAND
In the Joint Motion for Remand, it was indicated that in the
Board's October 1998 decision, the Board failed to provide
reasons and bases for rejecting an evaluation of the service-
connected cervical spine disability under Diagnostic Code
5285 based on limitation of motion. It was noted that the
Board applied the provisions of Diagnostic Code 5285 to award
a 10 percent rating for the veteran's neck disability based
on deformity of a vertebral body in addition to the 20
percent rating under Diagnostic Code 5322. It was further
noted that in that regard, the Board did not consider whether
a rating based on limitation of motion of the cervical spine,
as required under Diagnostic Code 5285, could provide a
rating greater than that currently assigned under Diagnostic
Code 5322. Thus, this matter was remanded for the Board's
consideration.
Subsequent to the Joint Motion for Remand, the veteran's
representative has submitted additional correspondence
showing that the veteran has received private and VA
treatment for his cervical spine disability and these
treatment records are not of record. Also, in a letter,
dated in July 2000, the veteran's attorney submitted
additional medical evidence and arguments pertaining to the
veteran's case.
The VA has a duty to assist in the development of the claim.
38 U.S.C.A. § 5107 (West 1991). Fulfillment of the VA
statutory duty to assist the appellant includes the
procurement and consideration of any relevant VA or other
medical records. Murphy v. Derwinski, 1 Vet. App. 78 (1990);
Ferraro v. Derwinski, 1 Vet. App. 326 (1991); Littke v.
Derwinski, 1 Vet. App. 90 (1990). Moreover, the Court has
stated that the duty to assist claimants in developing the
facts pertinent to their claims may, under appropriate
circumstances, include a duty to conduct a thorough and
contemporaneous medical examination. Proscelle v. Derwinski,
2 Vet. App. 629, 632 (1992); Green v. Derwinski, 1 Vet. App.
121, 124 (1991). In addition, the VA's duty to assist
includes the conduct of VA examination where the record does
not adequately reveal the current state of the claimant's
disability. Proscelle citing Schafrath V. Derwinski, 1 Vet.
App. 589, 595 (1991). The Court has also held that where the
veteran claims that a disability is worse than when
originally rated, and the available evidence is inadequate to
evaluate the current state of the condition, VA must provide
a new examination. Olsen v. Principi, 3 Vet. App. 480, 482
(1992), citing Proscelle, 2 Vet. App. at 632.
Accordingly, the Board finds that the RO should obtain these
records and thereafter afford the veteran a current VA
examination. The veteran's representative indicated that the
veteran has been treated by the Northport VA Medical Center;
Dr. Roy M. Speiser of Glen Cove, New York; Dr. Vincent J.
Leone of Great Neck, New York; and the North Shore University
Hospital (NSUH) of Glen Cove, New York.
In addition, the veteran's representative has raised the
issues of service connection for cervical degeneration
secondary to service-connected cervical disability as well as
the issue of entitlement to a total disability rating based
on individual unemployability. The Board notes that
additional issues were previously referred by the Board to
the RO; however, these issues have not been adjudicated.
Since the veteran's representative appears to present the
argument that the alleged cervical degeneration may be part
and parcel of the service-connected cervical disability and
since this claim is being remanded for other matters, the
Board refers these issues to the RO for the proper action.
The law requires full compliance with all orders in this
remand. Stegall v. West, 11 Vet. App. 268 (1998). Although
the instructions in this remand should be carried out in a
logical chronological sequence, no instruction in this remand
may be given a lower order of priority in terms of the
necessity of carrying out the instructions completely.
Accordingly, this matter is Remanded for the following
action:
1. The RO should obtain and associate
with the claims file copies of all
clinical records, which are not already
in the claims file, of the veteran's
treatment at the Northport VA Medical
Center.
2. The RO should request copies of all
clinical records of the veteran which are
not already in the claims file, from Dr.
Roy M. Speiser of Glen Cove, New York;
Dr. Vincent J. Leone of Great Neck, New
York; and the North Shore University
Hospital (NSUH) of Glen Cove, New York.
These records should be associated with
the claims file.
3. The veteran should be afforded a VA
examination to determine the current
nature, extent, and manifestations of the
veteran's residuals of a shell fragment
wound of the cervical region affecting
Muscle group XXII. All indicated x-rays
and laboratory tests should be completed.
The claims file, to include all evidence
added to the record pursuant to this
REMAND, should be made available to the
examiner prior to the examination. The
examiner should perform range of motion
studies of the cervical spine taking into
considerations the directives of DeLuca
v. Brown, 8 Vet. App. 202 (1995), if
applicable. In addition, the examiner
should indicate if limitation of motion
of the cervical spine is slight,
moderate, or severe as compared to normal
range of motion.
4. The RO should readjudicate the
veteran's claim for entitlement to an
increased rating for residuals of a shell
fragment wound of the cervical region
affecting Muscle group XXII taking into
consideration all applicable codes
including those for limitation of motion
as well as muscle injury to include 5285,
5290, and 5322. If the action taken is
adverse to the veteran, he and his
representative should be furnished a
supplemental statement of the case that
contains a summary of the relevant
evidence and a citation and discussion of
the applicable laws and regulations. He
should also be afforded the opportunity
to respond to that supplemental statement
of the case before the claim is returned
to the Board.
5. The RO should review the veteran's
claim for entitlement to service
connection for cervical degeneration
secondary to his service-connected
cervical spine disability. The RO should
consider if that alleged disorder is part
and parcel of the veteran's service-
connected cervical spine disability, and,
if so, it should be rated in conjunction
with that disability, if applicable. In
addition, the RO should consider if
entitlement to a total disability rating
based on individual unemployability is
warranted. If any claim is not resolved
to his satisfaction, the veteran and his
representative should so be advised. If
the veteran files a timely notice of
disagreement, he and his representative
should be provided with a statement of
the case as required by 38
U.S.C.A. § 7105(d) (West 1991) as to any
issue.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
LAWRENCE M. SULLIVAN
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1999).